Reinger v. Nasatir, Hirsch et al.
Filed 3/9/06 Reinger v. Nasatir, Hirsch et al. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
| JOHN J. REINER et al., Plaintiffs and Appellants, v. NASATIR, HIRSCH, PODBERESKY & GENEGO et al., Defendants and Respondents. | B181455 (Los Angeles County Super. Ct. No. SC 071372) |
APPEAL from the judgment of the Superior Court of Los Angeles County. Paul G. Flynn, Judge. Reversed.
John J. Reiner and Donna E. Reiner, in pro. per., for Plaintiffs and Appellants.
Robie & Matthai, and Edith R. Matthai, Kim W. Sellars, and Steven S. Fleischman for Defendants and Respondents.
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John and Donna Reiner appeal from the trial court's dismissal of their malpractice complaint against John Reiner's criminal defense lawyers, the firm of Nasatir, Hirsch, Podberesky & Genego and the firm's individual lawyers Michael D. Nasatir, William J. Genego, Richard G. Hirsch, and Vicki I. Podberesky. We reverse.
FACTS AND PROCEDURAL BACKGROUND
In November 2000, appellant John J. Reiner hired respondent law firm Nasatir, Hirsch, Podberesky & Genego to defend him at trial against charges of extortion in People v. Reiner (Ventura County Superior Court, case No. CR 48650 C).[1] He was thereafter convicted of two counts of attempted extortion and one count of conspiracy to commit extortion. In May 2001, the court sentenced him to 120 days in county jail and three years' probation. The day the court pronounced sentence, appellant filed a notice of appeal and a few weeks later hired appellate counsel.
In March 2002, the Reiners filed against respondents the malpractice complaint at issue in this appeal. They claimed respondents failed to use reasonable skill and care in defending John during the criminal trial. Their complaint alleged respondents put on a hurried defense after inadequate preparation, superficially examined witnesses and evidence, and mishandled post-conviction matters resulting in John's suffering needlessly onerous conditions of incarceration. The complaint alleged causes of action for professional negligence, breach of a written contract and the implied covenant of good faith and fair dealing, breach of fiduciary obligations, intentional infliction of emotional distress, and loss of consortium. In addition, Donna alleged negligent infliction of emotional distress from having seen respondents mishandle John's defense.
After filing their complaint, appellants moved to stay the entire action until the conclusion of all post-conviction proceedings and appeals. They requested the stay under the authority of Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194 (Coscia). Relying on Coscia, appellants correctly noted they could not pursue a legal malpractice claim against John's criminal defense attorneys unless, and until, John's criminal convictions were overturned. Coscia consequently permitted the trial court to stay the legal malpractice proceeding while the post-conviction appeals and other proceedings unfolded. In conjunction with appellants' request for a stay, respondents demurred to the complaint. They argued it failed to state a cause of action because John's convictions had not been overturned. The court granted the stay and took the demurrer off-calendar.
John's probation ended on May 18, 2004. The following week, Division 6 of the Court of Appeal for the Second District affirmed John's convictions. In September 2004, the Supreme Court denied John's petition for review.
In October 2004, John filed a petition for habeas corpus in the United States District Court for the Central District of California.[2] The magistrate judge who was assigned to review the petition recommended that the district court dismiss the petition because John was no longer in custody or on probation.[3] The district court has not yet ruled on the magistrate's recommendation, and the petition remains pending.
The trial court thereafter issued an order to show cause why it should not dismiss appellants' malpractice complaint. Arguing John's efforts at federal habeas relief had not ended, appellants opposed dismissal. Finding â€
